Judge Nathan Is Still Dope, Likes to Party and Bullshit

Judge Alison Nathan is staking a claim to the title of most hiphop jurist. Much like MC Shan she is down by law. The last time G:TB checked in with Judge Nathan was when she let the Beastie Boys off the hook on a copyright infringement claim. Once again (back is the incredible!) Judge Nathan decided a case involving a hiphop legend arising under 17 U.S.C. §§ 101 et seq.

Abiodun Oyewole wrote a song called "When the Revolution Comes" in 1968 and released it as a member of the group The Last Poets.



Around 2:10 the song goes "But until then you know and I know n****s will party and bullshit and party and bullshit and party and bullshit and party and bullshit and party ...." Fans of hiphop might recognize this from Biggie Smalls's song "Party and Bullshit."



Even if you don't recognize it, Mr. Oyewole did and he sued Biggie's estate. Mo money mo problems indeed! While he was at it he sued Rita Ora too because her song "How We Do (Party") also starts with the lines "party and bullshit."



Mr. Oyewole is aggrieved by both songs's use of the phrase "party and bullshit" from an IP perspective but also from a political perspective. According to his complaint, Biggie and Rita Ora used the phrase "party and bullshit" "in contravention" of Mr. Oyewole's original purpose, which was to "encourage[e] people to NOT waste time with 'party and bullshit."

Unfortunately for Mr. Oyewole, he hired what appears to be the worst lawyer admitted to the Southern District of New York. Seriously--she spelled her name wrong at least once in her online bio. If your lawyer can't spell her name correctly you can't expect her to lawyer correctly. Predictably, Biggie and Rita Ora (and the other big-time defendants including EMI and a Sony affiliate) won. In some cases, brutally.

For example, Kobalt Music and Downtown Music won under FRCP 12(b)(5), which is insufficient service of process. I've never seen this before. To prevent your case from being dismissed under Rule 12(b)(5), you just have to download the summons form and serve it with your complaint on the defendant. The form includes blanks for the name of the court, the names of the plaintiffs and defedants, the name and address of the plaintiff's attorney, and a place where you get the clerk of the court to sign it when you file the complaint. Somehow or other, Mr. Oyewale's attorney didn't fill out the blanks for some of the summonses. She also used some jackass process server who didn't serve the summonses on people authorized to receive service, like an officer or director of the company or their registered agent. It is stunning. Yet another reason why you shouldn't use a lawyer with a gmail address.

Judge Nathan dismissed the claims against the other defendants as fair use, turning the complaint against Mr. Oyewole because it alleged that Biggie and Rita Ora used the phrase "party and bullshit" "in contravention" of Mr. Oyewole's original purpose, which was to "encourage[e] people to NOT waste time with 'party and bullshit." Thus he admitted that their use was transformative and therefore constituted fair use. Again, really bad lawyering.

More remarkably, the 21 page opinion uses the word "bullshit" 60 times. That's almost three bullshits per page! It also uses the N word three times, exclusively while quoting lyrics, and with the final letters of the word replaced with asterisks. I think this shows good judgment--failure to do so would've been bullshit. Puns!

I Know It When I See It, and I See You Austin Murphy!

"I know it when I see it" isn't a particularly impressive legal test--it's possibly the most subjective line of reasoning anyone could put forth to justify an outcome. But sometimes it just works.

For example, when I introduced "Blurred Lines" to G:TB just over three years ago, I said "If 'Blurred Lines' doesn't sample Michael Jackson's 'Whew!' and rip off Marvin Gaye's 'Got to Give it Up' then I'm Quincy Jones." Marvin Gaye's kids probably read G:TB because they sued Robin Thicke and Pharrell Williams for copyright infringement and won. I knew it when I saw it!

When the New York Times reported on the case, they said "the music industry has been gripped by a lawsuit over whether Robin Thicke’s 2013 hit 'Blurred Lines' was merely reminiscent of a song by Marvin Gaye, or had crossed the line into plagiarism." The line between reminiscence and plagiarism has again been blurred at G:TB.



Three and a half years ago, rob wrote a post about rubgy and the NFL. To call it a post doesn't do the piece justice. It's like calling David a statue of a naked guy. It's so good that one particularly erudite commenter said "This is fucking brilliant."

The piece is set in 2030 and it opens with the contrivance that rubgy has passed the NFL in popularity. Although the NFL still exists, more people watch the rugby championship than they do the Super Bowl. Along the way it quotes Ta-Nehisi Coates, cites various concussion-related events that took place before the real date on which the piece was written, and references the fictitious "upstart American Rugby League."

Three days ago, Austin Murphy wrote a piece for www.si.com about the future of football. The piece is set in 2036 and it opens with the contrivance that rugby has passed the NFL in popularity. The NFL no longer exists, so instead of watching the Super Bowl people watch rugby. Along the way it quotes Ta-Nehisi Coates, cites various concussion-related events that took place before the real date on which the piece was written, and references the fictitious "American Rugby League."

Blurred lines indeed. I know it when I see it.

Raging zBullabaisse

This is a poor attempt at creating a recurring post while rob is travelling.

1. You say lache that, yo holmes lache this

Frank Petrella wrote a screenplay with Jake LaMotta about LaMotta's life, which they copyrighted in 1963. They assigned their rights to the screenplay to United Artists/MGM in 1976, and it became the movie "Raging Bull" in 1980.



Petrella died in 1981 and because of various peculiarities of copyright law, the renewal rights to his copyright in the screenplay passed to his daughter Paula. She renewed the copyright in 1991. In 1998, Paula informed MGM that their exploitation of "Raging Bull" infringed her copyright to the screenplay. She and MGM exchanged correspondence on this matter for two years. Then, in 2009, Paula sued MGM for copyright infringement. MGM asserted a laches defense--Paula waited too long to bring her claim.

I won't bore you with the details, but the case made its way to the Supreme Court. Justice Ginsburg (whose daughter is a copyright professor) wrote the opinion of the Court, holding that laches was not a bar and that Paula could receive damages for MGM's infringement over the past 3 years (the statute of limitations for copyright infringement is 3 years). So when someone else starts making money by ripping off our Ghooghles and Gheorghemas posts, let's wait until they start making millions before we sue them.

2. Jack Urbont ain't nothing ta lache wit

This development is particularly relevant to Jack Urbont. I previously noted Ghostface Killah's potential laches defense against Mr. Urbont but it looks like that won't hold up now. This may become important because last month Judge Buchwald wrote what appears to be an open letter to Pretty Tone stating that "you failed to appear for a deposition scheduled for April 30, 2014 and ... you have not produced a single document since July 19, 2013." She also said she would sanction him if he doesn't appear for his deposition and fulfill his other discovery obligations.

I think it's odd that Mr. Urbont has had problems locating and deposing The Kid given that he appeared on a reality TV show which required him to live in a house with a bunch of crazy people.



I also note that the last time Ghostdini was in one of these copyright infringement scrapes he never entered an appearance, he just laid in the cut and let his record label win the case. See Abilene Music, Inc. v. Sony Music Entertainment, Inc., 320 F. Supp. 2d 84 (S.D.N.Y. 2003). So maybe that's his plan.

3. Is Jay-Z infringing GFK's IP

It appears that Jay-Z is taking a page from the Wallabee Champ's potentially proprietary playbook. He and Timbaland were sued by Osama Ahmed Fahmy, the nephew of the guy who wrote "Khorsa Khorsa," because they sampled it on "Big Pimpin'".



Fahmy sued Jay in 2007, almost 8 years after the song came out. Interestingly, the judge in that case limited the timeframe for infringement based on laches. I suspect that ruling might change. Anyway, the case has been going on for 7 years and Hova still hasn't sat for a deposition. Pretty gangsta.

4. Jay-Z is not as gangsta as politicians from Bogota, NJ

Tito Jackson, the mayor of Bogota, NJ, was punched in the face by a rival's 80-year-old father. Seriously. Here's a video of the old guy's admission. I guess he'd just seen "Raging Bull" and was fired up. Naturally, both men filed police reports.